Criminal Law and Theft Acts - Essay Example

Question The facts of the case present two types of violations under the Theft Acts of 1968 and 1978 and under the Fraud act 2006. The first violation committed by Edwin can be observed by his act of returning the identification card to its owner and using it for his own benefits. Where a person appropriates the property of another without the knowledge and the express consent of the owner thereof, that person who appropriates the property of another shall be liable for theft. According to Section 3 (1) of the theft Act 1968, “any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner” shall be deemed as a violation of the law. The actus rios1 of this offense is complete when Edwin assumed the right of the owner or dealt with the property as if he is the owner thereof. On the other hand, the criminality of the act of Edwin can be determined by his motivation or the mens ria2. In this case, the motivation of Edwin is dishonesty. Note that in this case, Edwin wanted to enter into the casino but could not do so because he is still a minor. Since the owner of the identification card is already 21 years and is therefore eligible to enter inside the casino, he assumed the identity of the owner of the card. Furthermore, in he is also violating section 6(1) of the Fraud Act 2006 when he decided to use the identification card for the purpose of committing a fraudulent act. According to Section 6(1) of the Fraud Act 2006 is that “a person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud.” Note that according to this provision, the mere possession of a thing that is used for fraud which is in this case, an identification card of a student from Twospires University. Note that in R v Goodwin [1996]3, the defendant was found guilty of going equipped for theft when he carried Kenya shilling coins to play at an amusement park. The defendant here used the coins to gain access to the gaming machines. In the case of R v Landy (1981)4, the Court noted that when the deciding a case of theft involving deception or dishonesty, the “jury should be directed to look into the mind of the defendant” to determine whether the defendant is indeed guilty for dishonesty. According to the case of R v Greenstein (1975)5, in judging the state of the mind of the accused, the jury should use the general standards of honesty. The benchmark of honesty should be the conscience of a reasonable and honest man and not the sense of honest on the part of the accused. The standards of dishonesty was later on adopted in the case of R v Ghosh (1982)6 when the court ruled that when the jury, applying their own standards of honesty, found the defendant to be dishonest, they must also establish that the defendant knew that the act he committed is considered to be dishonest by ordinary people. The second offence committed by Edwin in this case would be a violation of Section 2 of the Fraud Act 2006 on fraud by false representation. In section 2(1)(a), a person may commit a violation of this provision if he “dishonestly makes a false representation (i) make a gain for himself or another”. In our case, Edwin entered the casino with the use of the identification he found. He was then admitted as a member and was willing to pay the standard £ 50. However, since the person who owned the identification card is entitled to a discount on the membership fee of the casino, Edwin ended up paying only £ 25. By virtue of the discount, Edwin was able to gain some money out of the transaction. Although in this case Edwin did not plan to pay less than the regular membership fee and in fact he brought the right amount of money to pay for the membership fee, his good intention of paying the right amount is no longer considered as a mitigating circumstance is this case. Note that from the very beginning of the act, Edwin already committed misrepresentation and is therefore already guilty of violation of the Fraud act 2006. What we have here is a continuing crime where the defendant committed a series of acts which perpetuated the act of dishonesty as defined in the Fraud Act 2006. Since this is a continuing crime and Edwin did not do anything to change the course of events as it unfolds, he is therefore guilty of violation of section 2 of the Fraud Act 2006. Question 2 In this case, Edwin is guilty of violation of Section 16(c) of the Theft Act 1968. Under this section, a person is said to have gained pecuniary advantage when “he is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting.” Note that in this case, Edwin is still a minor and he should not have been admitted into the casino had he not used the identification card of the student from Twospires University. The actus rios in this case is the deception of the Edwin and the mens rea is his dishonesty. Section 15(4) of the Theft Act 1968 so provides that “any deception (whether deliberate or reckless) by word or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person.” In the case of MPC v Charles (1977)7, the Court ruled that a person who wears a particular uniform gives the other persons the impression that he is indeed an employee of a certain company and that he is representing that company. By analogy, the fact that Edwin is using the identification card of the student from Twospires University, he is therefore giving the other people around him the impression that he is indeed from the University and that he is already of legal age. In the case of R v Caldwell [1982]8, where the defendant is aware that the facts that he disclosed may or may not be true, he is considered guilty of deception. Given the facts of the case and the law prohibiting dishonesty, Edwin therefore should be prosecuted inn violation of the law. Another violation of committed by Edwin in this case is violation of Section 3 of the Fraud Act 2006. Note that when Edwin started winning money from the table, he noticed that he is receiving five times more than he should. Such knowledge that he is receiving more than he should gives rise to the obligation to disclose such incident. According to Section 3 of the Fraud Act 2006, “a person is in breach of this section if he a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose and (b) intends, by failing to disclose information – (i) to make a gain for himself or another, or (ii) to cause loss to another, or (b) to cause loss to another or to expose another to a risk of loss”. Note that when Edwin noticed that he received more money than he should, he kept quiet, cashed the chips and immediately left the casino. He failed to do what he is legally obliged to do, that is to inform the casino staff that he is giving him more money that he should have. Edwin is also obliged to return the excess money to the casino staff because technically it does not belong to him. Note that when a person takes something which he knows does not belong to him; he is therefore committing a violation of the Theft Act 1968 and 1978. In the case of Edwin, his act of not informing the casino staff and surreptitiously left the casino taking with his the excess money gave rise to the actus rios of theft with the mens ria of deception. Question 3 In this case, Edwin committed a series of acts with the intent of committing fraud. In the first instance where Edwin switched the price tags of the pair of designer sunglasses with the intent of coming back later to buy the expensive one at a lower price, there was really no crime committed in this case because he desisted from consummating the crime. Note the Edwin switched back the price tags when he noticed that he was being watched by a store detective. In this case, there was the intent to defraud but the actual act was not committed. Since it is the criminal act which is punished by the law and not just the mere criminal intent of the person, he or she may not be prosecuted and held liable under the law unless he or she consummated or performed the criminal act itself. Technically, having a criminal mind is not punishable per se. Since the thought is limited in your head you may not be prosecuted under the Theft Act 1968 and 1978 and the Fraud Act 2006. However, if the criminal intent is now accompanied by a criminal act, then the act now becomes punishable under the law. To illustrate, if Edwin succeeded in switching the price tags and then coming back later on a purchase the sunglasses for a lower price, then he will not be guilty of violation of the law. However, if he comes back later on and the sunglasses are no longer there, there could not be a perfection of the crime so he could not be considered in violation of the law. On the act of Edwin in connection with the pair of shoes where he knew that the store will not really sell the pair of shoes for mere £ 5, we now see the criminal mind at work. According to section 3(b) of the Fraud Act 2006, when a person failed to disclose information when he has the obligation to do so and such act was done with the intent to “to make a gain for himself”, he is liable for fraud. Under section 5 of the Fraud Act 2006, gain is defined as to include the keeping of what one already has as well as “getting what one does not have.” Gain includes that something that one may have either temporarily or permanently. In this case, Edwin saw that the other pair of shoes is clearly marked £ 50 so he could not have been making an honest mistake in this case but rather performed an act of deception under the Fraud Act 2006. Note that the actus rios of this offense is considered as complete when the defendant by deception obtains for himself any pecuniary advantage. The mens rea on this case can be seen in the act of the defendant of dishonestly going to the teller and deliberately misled the cashier into ringer the cash registrar for only £ 5. As in the case of R v Ghosh (1982)9, the intent of the party committing the act should be looked into. Where the mind of the party committing the act is fraudulent, and such party committing the act clearly understands that what he is doing is considered as dishonest by the general public, then that person committing the act shall be considered as in violation of the section 3 of the Fraud Act 2006 and should be prosecuted accordingly. Question 4 The facts of this case stated that Edwin went into the sports clothing department store to steal a replica shirt. While he was looking around the store, he saw a handbag behind the counter and tried to pick up the handbag. Just as he got hold of the strap of the handbag, the store assistant returned and got hold of the straps of the hand. Edwin hit the store assistant with the carrier bag containing the shoes he had just bought several times with the intent of divesting him of the handbag. Following the facts of this case, Edwin has committed the crime of robbery. Section 8 of the Theft Act 1968 so states that “ a person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.” Note that when there is force involved in the act of taking the property of another, the act is no longer a simple act of theft but rather of robbery (Allen 2005). The determining factor that separates the act of theft from the act of robbery under the Theft Act 1968 and 1978 is the presence of violence or force (Smith 1997). According to the law, in the act of robbery, the force may not be actual application of violence as in this case where Edwin hit the store assistant with a career bag. A threat of violence can already qualify the act into robbery (Allen 2005). In the case of Edwin, the actus reus was the picking of the handbag and hitting the shop assistant several times with the carrier bag containing the shoes he had bought in the store. The mens rea of the case is the intent of Edwin to steal the money inside the handbag and his intention to inflict harm on the shop assistant. Although Edwin did not really succeed in divesting the shop assistant of the possession of the handbag, the crime has already been perfect based on the provisions of Section 8 (2) where it is stated that “a person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life.” Note that with this provision, there is really no need to consummate the act of robbery by taking the property but rather it can already be committed when the defendant assaults the person with the intention of robbing that person (Ormerod 2005). The actus rios of robbery is the act of the person of stealing and applying force to any person immediately before or at the time of stealing. As in this case, Edwin applied force during the actual commission of the crime by hitting the store assistance with the carrier bad containing his shoes. On the other hand, the mens rea of this case is dishonesty and the intention to permanently deprive the other person the possession of the property, in this case the handbag and its contents. The application of the force should be made before or at the time of the stealing and there should not be a break between the time acts or else two separate crimes will be committed (Allen 2005). Note that where the violent act was committed after a reasonable lapse of time when the act of robbery was committed, the assault will now be considered as a separate crime from that of theft (Smith 1997). Furthermore, since the act of violence is a determining factor whether the act qualifies for robbery, the absence of violence will now downgrade the liability of the defendant to mere theft. Is it is necessary that actual force be applied on the person who owned the handbag? Apparently, the law does not require that such force be applied to the person who owns the property. According to Section 8 of the Theft Act 1968, it is not necessary that the act of violence is directed to the same person who owns the property but rather to any person who is present during the commission of the crime. In this case, even if the store assistant is not the owner of the handbag, the elements of robbery are still present since the law did not require that the violence should be directed on the same person who loses the property in connection with the theft. Question 5 In this case, there are three separate offenses committed by Edwin. The first offence committed in this case is that of violation of Section 11 of the Fraud Act 2006. Under Section 11(2), violations of this provision may be committed where the person obtains services that are made available to him on the premise that payment will be made in respect to them and that the person knows that such services is being made available to him because he made a promise to pay. Where the person failed to pay for the services as promised, he shall be punishable under this section. In the case of DPP v Ray [1974]10 where the defendant ordered in a restaurant, he had consumed the meal in an honest state of mind believing that he had money in his wallet. I turned out later on that he did not have money in his possession. However, instead of telling the restaurant personnel of his change in circumstances, he waited until such time when the waiters left the dining area and then bolted out of the door. The defendant in this case was convicted on violation of Section 16(2)(a) of the theft Act 1968 which was later on replaced by the Theft Act 1978. Recently, the provisions of Section 16 were replaced by the provisions of the Fraud Act 2006. Since there are no significant changes in the law during its transition, the ruling in the case of DPP v Ray [1974]11 may still be applied in the case of Edwin. Edwin committed the act of deception when he pretended to congratulate the staff for its cooking thereby distracting them of the fact that he has not yet paid his bill. Note that Edwin did not have any intentions of paying for the services that he just enjoyed from the restaurant and such act of not paying for what such services is in violation of Section 11 (2) of the Fraud Act 2006. The second offence that Edwin committed in this case is theft when he took the £ 20 bills from the counter. According to the definition of theft in the Theft Act 1968 in Section 1(1) “a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it…” In this case, Edwin took the money with the clear intent of making it his own. The actus rios is this situation is the taking of the money from the counter and permanently depriving the other of it. The mens rea in this situation is dishonesty. The third separate crime committed by Edwin in this case is assault. This case could not really be classified as robbery as defined in Section 8 of the Theft Act 1968. Note the act of violence was committed only when the defendant is already getting away from the scene of the crime. According to Section 8 of the Theft Act 1968, robbery can be committed when the violence was committed before or during the act of stealing. In this case, there is already a gap between the act of stealing and the violence therefore the stealing and the violence cannot be considered as one act only. Had the violence happened when the defendant took the money from the counter, then such act would have qualified under Section 8 of the Theft Act 1968 as robbery. Question 6 The facts of this case so states that Edwin had been receiving gifts from Albert for sometime which includes an expensive watch which Albert got for his retirement. Since Edwin is used to receiving gifts from Albert, he thought that the cheque in the amount of £350 is one of those gifts and cashed it. The question now is whether or not Edwin violated the law in cashing the cheque. In the case of R V Hinks [2000]12, where the question of the validity of a gift is brought up, Lord Hutton said that it would be contrary to common sense that a person who receives a property as a gift would be considered as acting dishonestly, regardless of whether or not there are some moral questions involved in the acceptance of the gift. The Court noted in this case that under Section 2(1)(b), it is so provided that “a person’s appropriation of property belonging to another is not to be regarded as dishonest if he approapriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it.” In the case of Edwin, there is nothing that would suggest that he appropriated the cheque without the consent of Albert. Note that Albert gave the cheque to Edwin. In the case of R v Mazo (1997)13, the Court did not consider a person dishonest where the other person actually gave the property to him. According to the ruling of R. v Hinks (2000)14, the defendant can only be considered guilty of dishonesty if the donor is mentally incapacitated to give the gift and the donee knows that the donor is mentally incapacitated to do so. In this case, there is no showing that Albert is mentally incapable of giving gifts. Based on this premise, Edwin does not have liability under the law for dishonesty. Another view on this case would be the possibility that Albert made a mistake in writing down the cheque. Since the salary of Edwin is £35, there is a possibility that Albert made a mistake by adding a number zero at the end of the figures thereby making the amount £350 instead of just £35. If Albert indeed made a mistake and later on asked Edwin to return the money, then he can prosecute Edwin for dishonesty under the Fraud Act 2006. References: 1. Allen, Michael. Textbook on Criminal Law. Oxford University Press: Oxford. (2005) 2. Ormerod, David. Smith and Hogan Criminal Law, LexisNexis: London. (2005) 3. Smith, J. C. Law of Theft, LexisNexis: London. (1997) 4. Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. London 5. Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977 6. Fraud Act 2006 http://www.opsi.gov.uk/acts/acts2006/20060035.htm 7. Explanatory Notes to Fraud Act 2006 http://www.opsi.gov.uk/acts/en2006/2006en35.htm 8. R v Goodwin [1996] Crim LR 262 9. R v Landy [1981] 1 WLR 355 10. R v Greenstein [1975] 1 WLR 1353 11. R v Ghosh [1982] QB 1052 12. MPC v Charles [1977] AC 177 13. R v Caldwell [1982] AC 341 14. DPP v Ray [1974] AC 370 15. R V Hinks [2000] UKHL 53 16. R v Mazo [1997] 2 Cr App R 518 Read More